TERMS AND CONDITIONS FOR THE SUPPLY OF WEB MARKETING SERVICES BY LURE CREATIVE
1. Definitions and Interpretation
1.1 In these terms and conditions the following definitions apply unless otherwise stated:
‘Company’ means Lure Creative.
‘Client’ means the individual or business entity who purchases Services from the Company.
‘Services’ means the services the Company will provide to the Client as specified in the Contract / agreed upon estimate.
‘Contract’ means the contract / agreed upon estimate between the Company and the Client for the supply of Services.
‘Business Day’ means a day (other than Saturday, Sunday or a public holiday).
‘Force Majeure Event’ means an event beyond the reasonable control of either party, including but not limited to failure of a utility service, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, fire, flood, storm or default of suppliers or subcontractors.
‘Intellectual Property Rights’ means all patents, rights to inventions, copyright and related rights, trade marks, trade, business and domain names, unfair competition rights, rights in designs, rights in copy, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
‘Specification’ means the description or specification of the Services in the Contract / agreed upon estimate.
‘Terms’ means the terms and conditions as updated from time to time by the Company.
‘White Label Work’ means Services provided by the Company to a Client who rebrands these services as their own for the benefit of their client.
2. Terms and Conditions
2.1 These Terms shall apply to all agreements concluded between the Company and the Client to the execution of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. The Contract
3.1 The Contract constitutes an estimate from the Company to the Client in which the Client has the option to purchase the Services of the Company in accordance with these Terms.
3.2 The Contract shall only be deemed to be accepted when the Company issues a written acceptance of the Contract, or when the Company has started to provide the Services having received the Contract, whichever happens first.
3.3 The Contract constitutes the entire agreement between the Company to provide the Services to the Client and for the Client to purchase those Services, in accordance with these Terms.
3.4 The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Any samples, drawings, descriptive matter, or advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues, brochures or website are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or any other contract between the Company and the Client for the supply of Services.
4. Project Management and Communications
4.1 To maintain the integrity of the project timeline the following expectations will need to be met with regards to response times, procedures, project notifications, change requests, status reports, etc.
a) All parties agree to acknowledge each other’s requests within two (2) business days.
b) The Client will designate a Lead Contact that will communicate with the Company Project Manager, and or Account Lead, on management details, approvals, billing, etc.
c) The Company will provide two (2) business days notice prior to meetings (in-person or online) that require attendance by the Client.
d) The Client will provide two (2) business days notice prior to meetings (in-person or online) that require attendance by the Company.
e) The Company Project Manager, and or Account Lead, in collaboration with the Client, will own all aspects of the project including, but not limited to, the following: Schedule,
Scope, Budget, Internal and External Meetings, Change Orders, Client Communications, and more.
5. Company Obligations and Warranties
5.1 The Company warrants that it will provide the Services as stipulated in the Contract using reasonable care and skill to conform in all material respects with the Specification.
5.2 The Company shall use all reasonable endeavors to meet any performance dates specified in the Contract but any such dates shall be estimates only and time shall not be the essence for the provisions of the Services. The Company shall not be liable for any delay in delivery of the Service caused by a Force Majeure event or the Client’s failure to provide the Company with adequate delivery instructions or any other instructions relevant to the supply of the Services.
5.3 The Company shall have the right to make any changes to the Services which are necessary to comply with any applicable law.
5.4 The Company shall be entitled to use contractors, if necessary, for the provision of the Services provided always that the Company shall remain liable to the Client for the performance of the Services as if it had carried them out itself.
6. Client Obligations and Indemnities
6.1 The Client shall provide assistance and technical information to the Company, as reasonably required by the Company in sufficient time to facilitate the execution of the Contract in accordance with any estimated delivery dates or milestones. The Client shall have sole responsibility for ensuring the accuracy of all information provided to the Company and warrants and undertakes to the Company that the Client’s employees assisting in the execution of the Contract have the necessary skills and authority.
6.2 The Client shall be obliged as quickly as possible and within the agreed deadline to comment on and or approve materials provided under the Services, including (without limitation) advertising copy, search items and graphic material submitted by the Company (see section 9 Delays below).
6.3 The Client shall be obliged to inform the Company immediately of any delays or changes that may affect the Services delivered by the Company. Any delays and or changes may require the Contract / agreed upon estimate to be revised.
6.4 The Client shall indemnify and keep the Company indemnified fully against all liabilities, costs and expenses whatsoever and howsoever incurred by the Company, in respect of any third parties as a result of the provision of the Services in accordance with the Contract, Specification, or the content of the Client’s advertising or web pages which result in claims or proceedings against the Company for the infringement of any Intellectual Property Rights or other proprietary rights of third parties, or for breach of confidentiality or contract or for defamation.
7.1 The Client acknowledges that certain Services may involve the licensing of third party Intellectual Property Rights and that the Client may be required to enter into a license directly with such third party. Unless otherwise expressly stated, all prices shall be exclusive of costs for the acquisition of Intellectual Property Rights for materials to be included in marketing materials, including if relevant (but without limitation) pictures and licenses from third party owners and licensors.
7.2 The price stated in the Contract shall be an estimate based on a qualified estimate of the number of hours required to provide the Services. This is an estimate only and Services shall be invoiced in accordance with the actual numbers of hours spent in accordance with the price set in the Contract and in the event that the price is not stipulated, the Client shall be charged at the hourly rate specified in the Company’s then current price list. The Company shall be obliged to update the estimate and budgets on an ongoing basis following among other things, changes made to the Contract.
7.3 Whilst every effort is made to ensure that costing estimates are accurate, the Company reserves the right to amend any estimate, should an error or omission have been made.
8.1 The Client shall pay each invoice submitted by the Company within 15 Business Days (net 15) of the date of the invoice and in cleared funds in accordance with clause 8.2.
8.2 The Client shall pay each invoice either via mailed check, ACH / eCheck, credit or debit card.
8.3 The Client shall pay all amounts due under the Contract in full without any deductions or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part. The Company may without limiting its other rights or remedies, set-off any amount owing to it by the Client against any amount payable by the Company to the Client.
8.4 The Company reserves the right to charge a fee for late payments. Invoices not paid within the agreed upon terms are subject to a 5% monthly finance charge until the invoice(s) has been paid in full.
8.5 Late payment shall be considered as constituting a material breach of the Contract entitling the Company (at its discretion) to cancel the Contract and asset the usual remedies for breach.
8.6 If the Client needs the Company to complete the work within a shorter time frame than specified in the Contract, and the Company agrees to such time frame, the Company reserves the right to charge rush fee of 50% to 100% to prioritize such projects ahead of pre-planned work.
9.1 Any changes to the scope of work in this proposal, Client dependencies or delays in Client feedback / approvals, will potentially impact the project timeline and budget. The Company Project Manager, and or Account Lead, will be accountable to address timeline and estimation impacts to the project at such times with the Client.
9.2 Any delays of three (3) or more business days by the Client in providing the Company with requested feedback may require the Company to suspend the project.
9.3 If the Client falls more than ten (10) business days behind in providing the Company with requested feedback then the Company may put the project on indefinite hold.
9.4 Any suspended projects and indefinite hold projects are automatically moved to the back of the Company’s production queue.
9.5. The Company may charge a restart fee of 10% of the total project cost to move the Client’s project out of indefinite hold status. All restart fees must be paid in full by the Client before the Company starts working on the project again.
9.6 If the Client falls more than twenty (20) business days behind on providing the Company requested feedback then the Company reserves the right to bill the Client for all billable hours to date.
9.7 If the Client falls more than thirty (30) days behind on providing the Company with requested feedback then the Company reserves the right to terminate the project(s) and the Company shall be entitled to invoice the remaining total Contract cost regardless if the Company completed all the Services specified in the Contract.
10. Quality Assurance
10.1 The Company will perform full performance testing against the requirements stated in the proposal.
10.2 The Company will verify browser compatibility with the most current versions of Chrome, Firefox and Safari. If Client wishes to test the compatibility of other browsers Lure Creative will provide a separate estimate to the Client for that.
10.3 Upon completion of internal development and testing the Company will provide the Client with a testing / staging link so the Client can perform their review of the site.
10.4 Upon completion of Client review, the Client is given two (2) rounds of revisions. A revision is considered one edit or multiple edits that are grouped together in a single communication and fall within the work outlined in this proposal. Note: These rounds of revisions do not cover changes to design, layouts and functionality since those items were approved by the Client during the mockup phase of the project.
10.5 Any additional edits after the two rounds of revisions are completed will be charged at the Company’s normal hourly rates ($150/hr) with a 1 hour minimum.
10.6 Requests that fall outside of this proposal will be handled via a Change Order (see section 11 Change Management).
11. Change Management
11.1 Any changes the Client wishes to make to any project documents that they have already approved (proposal, sitemap, wireframes, design, mockups, layouts, etc), or change requests that fall outside the work outlined in the proposal, will need to be documented and submitted by the Client to the Company.
11.2 Any assets (photos, videos, icons, logos, etc.) the Company requests from the Client must be provided in the specified format (type, size, etc.). Any assets that are not provided to the Company in the specified format, and require the Company to rework / redo the assets, will result in a Change Order.
11.3 Based upon the changes requested by the Client, the Company will prepare and send Client a Change Order which will detail changes and any additional cost or time implications due to the new changes / requirements requested.
11.4 Client will need to review and approve the Change Order before any changes requested will be worked on by the Company. Also, if requested changes might have an impact on work that is already approved and started, the Company will stop that work until Client makes a decision on the Change Order.
12.1 In the event that the Client proves that the Services are delayed or not in accordance with the Contract, the Company shall be obliged to remedy or redeliver, at its own discretion, without undue delay. In the event that the Services continue to not be in accordance with the Contract after reasonable attempts have been made to remedy this, the Client shall be entitled to cancel the Contract in accordance with clause 17.2 a) provided that the breach is material.
12.2 Complaints concerning delays or breach of Contract shall be submitted immediately after the time when the Client became or should have become aware of the matter. If the Client fails to bring the defect (unless by its very nature is impossible to ascertain within such a period) to the attention of the Company within 48 hours the Client shall be deemed to have accepted the Services and shall not be entitled to assert remedies based on delays or breach of Contract.
12.3 The Client hereby acknowledges that certain Services rely upon goods and or services provided by third parties (Third Party Services). The Client acknowledges that the Third Party Services will be governed by that third parties’ terms and conditions and that the Company cannot provide any warranties in respect of the Third Party’s Services and will not be liable to the Client for any delays and / or failings in respect of the same. Providers of Third Party Services may provide their own warranties to the Client and the Client must satisfy itself whether or not such warranties (where given) are acceptable for the Client’s business purposes or risk management policies.
12.4 The Company’s only responsible in respect of the Third Party Services is to take reasonable care and skill when selecting the providers of the same.
12.5 The Client’s exclusive remedies for delivery of Services not conforming with the Contract are specified in this clause 12 and, if the remedies set out in these Terms have been exhausted, the Client’s final remedy is limited to cancellation of the Contract and the Company’s sole liability is to refund any payments for Services not conforming with the Contract, subject to the limitations set out in clause 13 below.
13.1 Except as expressly stated in this Clause 13, the Company shall have no liability to the Client for any loss or damage whatsoever arising from or in conjunction with the provision of the Services or for any claim made against the Client by any third party.
13.2 Without prejudice to the generality of Clause 13.1 above, the Company shall have no liability for any losses or damages which may be suffered by the Client whether the same are suffered directly or indirectly or are immediate or consequential which fall into the following categories:
a) Any direct or consequential loss arising under or in relation to the Contract even though the Company was aware of the circumstances in which such loss could arise;
b) Loss of profits; loss of anticipated savings; loss of business opportunity or goodwill;
c) Loss of data; and
d) Fraudulent clicks on any of the Client’s accounts managed by the Company.
13.3 To the extent such liability is not excluded by sub-clauses 13.1, 13.2 and clause 14 below, the Company’s total liability (whether in contract, tort (including negligence or otherwise)) under or in connection with the Contract or based on any claim for indemnity or contribution (including for damage to tangible property) or otherwise will not in any event exceed the total sum invoiced for the Services.
14. Other Limitations of Liability
14.1 The Company shall not be liable for downtimes, interference in the form of hacking, virus, disruptions, interruptions, faulty third party software, search engines or websites on which a service is dependent or other deliveries from a third party. The Company shall use its reasonable efforts to assist in remedial efforts if so requested by the Client. Any work connected with remedial efforts as described above shall be charged to the Client separately in accordance with these Terms or (at the Company’s discretion) the Company’s price list applicable from time to time.
14.2 The Company shall not be liable for any changes made without notice by the Client or a third party employed by the Client to domain names, websites, links, technical set-up, etc. and affecting the Services delivered by the Company. Preceding or subsequent work connected with any adjustments required as a result of such changes shall be charged to the Client in accordance with these Terms or on the basis of the Company’s price list applicable from time to time at the Company’s discretion.
14.3 If the Client does not implement some or all of the Company’s recommendations, the Company shall not bear any liability for any lack of success experienced by the Client relating to the Services.
15. Intellectual Property Rights
15.1 It is the responsibility of the Client to ensure that they have the right to use any Intellectual Property Rights when provide any text, image or representation (“Materials”) to the Company for incorporation into the Services and the Client hereby grants or agrees to procure the grant of (as applicable) an irrevocable license to the Company to use such Materials for the purposes of providing the Services for the duration of the Contract.
15.2 The Client shall be responsible for ensuring that the contents of Materials which the Client has contributed or approved are not in contravention of legislation, decency, marketing rules or any other third party rights. The Company shall be entitled to reject and delete such material without incurring any liability. In addition, the Company shall be entitled to cancel the Contract.
15.3 The Client shall indemnify the Company against all damages, losses and expenses suffered or incurred by the Company as a result of the Materials which the Client has contributed or approved being in contravention of legislation, decency, marketing rules or any other action that any such Materials infringe any Intellectual Property Rights of a third party.
15.4 The parties shall be obliged to notify the other party without any undue delay of any claims raised against a party as described above.
15.5 Unless expressly stated otherwise in these Terms or in the Contract, the Intellectual Property Rights created, developed, subsisting or used in connection with the Services and whether in existence at the date hereof or created in the future shall vest in and be the property of the Company or the relevant third party from whom the Company has acquired a right of use with a view to executing the Contract. The Client agrees to execute and deliver such documents and perform such acts as may be necessary from time to time to ensure such Intellectual Property Right vest in the Company.
15.6 The Intellectual Property Rights as mentioned in clause 15.2 shall not be used, assigned, distributed, copied, forwarded to online or offline activities by the Client without a separate, express written agreement.
15.7 If the Company makes software, scripts, API services, etc. available to the Client as part of the execution of a Contract, the Client shall only acquire a non-exclusive personal non transferable license to use such material until the Services under this agreement cease.
15.8 The Client hereby irrevocably licenses the Company to use and display the Client’s name, figure, logo, etc. as a reference on the Company’s website, other marketing materials or types of media whilst they a Client of the Company and for 18 months after the Contract terminates.
16. Confidentiality and Personal Data
16.1 A party (“Receiving Party”) shall keep in strict confidence all technical and commercial know-how, specifications, processes, creations or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (“Disclosing Party”), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know if for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall endure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause shall survive termination of the Contract.
16.2 During the term of the Contract and for a period of 5 years from the date of its conclusion, the Company shall take the same care as it uses with its own confidential information, to avoid, without the Client’s consent, the disclosure to any third party (except a subcontractor working on the Services who is subject to similar undertakings of confidentiality) of any of the Client’s business or operational information which the Client has designated as confidential.
16.3 The obligation in clause 16.2 shall not apply to any information which is or becomes publicly available otherwise than through a breach of this agreement, is already or rightly comes into the Company’s possession without an accompanying obligation of confidence, is independently developed by the Company, or which the Company is required to disclose by law.
16.4 During the term of the Contract and for a period ending 5 years from termination thereof, the Client will not disclose to any persons within its organization that do not have a need to know, or to any third party, any information and non Client materials provided by the Company concerning the method or approach the Company uses in providing Services.
16.5 Each party agrees to comply with its respective obligations under the Data Protection Act 1998.
16.6 The Client shall be obliged to indemnify the Company for any loss, including costs incidental to legal proceedings, suffered by the Company as a result of the processing of personal data which the Client has contributed being in contravention of the Data Protection Act 1998 or marketing law. The parties shall be obliged to notify the other party without undue delay of any claims raised against a party as described in the present clause.
17. Term, Termination and Assignment
17.1 Agreed upon Recurring Monthly Service Contracts (i.e. contracts of $2,500 or more) are set for a minimum of six months. Recurring Monthly Service Contracts will automatically renew every six months, for another six months, at the end of the initial Contract term unless and until either party notifies the other of its wish to terminate the Contract at the expiry of the current term by giving the other party at least 30 days’ written notice to expire at the end of that Contract term.
17.2 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if the other party:
a) commits a material breach of the Contract and (if such breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
b) becomes or is insolvent or is unable to pay its debts (within the meaning of the Insolvency Act 1986) or (except for the purposes of a genuine amalgamation or reconstruction)
a petition is presented or meeting convened or resolution passed for winding up the defaulting party or the defaulting party enters into liquidation whether compulsory or
voluntarily or compounds with its creditors generally or has a receiver, administrator, or administrative receiver appointed over all or any part of its assets or the defaulting
party ceases to carry on all or a substantial part of its business.
17.3 The Company shall, in addition to all other rights and remedies under these Terms be entitled to terminate this Contract without notice in the event that any of its charges for the Services are not paid in accordance with these Terms.
17.4 Upon termination, for whatever reason, the parties shall be obliged to return all materials received from the other pursuant to the Contract without undue delay. If relevant, the Client shall be obliged to remove codes, etc. from websites without undue delay. If the Client fails to do so, the Company shall be entitled to invoice the Client in line with its then current terms and conditions for subsequent Services without any such invoicing amounting to a waiver of the Company’s right to terminate the Contract.
17.5 The Client shall not be permitted to assign or transfer all or any parts of its rights or obligations under the Contract and these Terms without prior written consent of the Company.
17.6 The Company shall be entitled to assign or subcontract any of its rights or obligations under the Contract and these Terms and the Client acknowledges that certain elements of the Services will be provided by third parties.
17.7 The Company does not provide refunds of any kind for cancelled services that were purchased at a discounted rate. Only services that were purchased at The Company’s normal rates are eligible for a refund when the Client, or The Company, terminates a service.
18. Force Majeure
18.1 Neither party will be held liable for a Force Majeure Event. Examples being a war, riot, crime, epidemic, tornado, earthquake, etc.
18.2 If a party believes that a Force Majeure Event has occurred, such party shall immediately inform the other party of the start and end of the Force Majeure Event.
18.3 Notwithstanding the other provisions of the present Terms, each party shall be entitled to terminate the Contract without liability to the other by written notice to the other party in the event that the performance of the Contract is impeded for more than 6 months due to a Force Majeure Event.
19.1 The Company reserves the right to modify or discontinue, temporarily or permanently, the Services with or without notice to the Client and the Company shall not be liable to the Client or any third party for any modification to or discontinuance of these Services save for the return of any prepaid sums in connection with the provision of the Services which are subsequently not provided.
19.2 The Company shall be free to provide its Services to third parties whether during or following the provision of the Services to the Client.
19.3 During the term of the Contract and for a period of 12 months thereafter, the Client agrees not to employ or engage or offer to employ or engage anyone designated by the Company to work on the Services.
19.4 The failure of either party to enforce or to exercise at any time or for any period of time any right pursuant to these Terms does not constitute, and shall not be construed as, a waiver of such terms or rights and shall in no way affect that party’s right later to enforce or to exercise it.
19.5 If any term of these Terms is found illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining Terms, be deemed omitted from these Terms and shall in no way affect the legality, validity or enforceability of the remaining Terms which shall continue in full force and effect and be binding on the parties to the Contract.
19.6 Any valid alteration to or variation of these Terms must be in writing signed on behalf of each of the parties by duly authorized officers.
19.7 A person who is not a party to the Contract shall not have any rights under or in connection with it.
19.8 All notices must be in writing to Lure Creative, 25000 College Blvd Ste 300, Olathe, KS 66061, or such address as is advised by the Company.
20. Entire Agreement
If any part of these Terms is determined to be invalid or unenforceable, it will not impact any other provision of these Terms, all of which will remain in full force and effect. These Terms are governed by, and will be interpreted in accordance with, the laws of the State of Kansas, without regard to any choice of law provisions.
The full name of our company is Lure Creative, 25000 College Blvd, Suite 300, Olathe, KS 66061. You can contact us by phone at: 913-649-4040.